UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201700097

_________________________

UNITED STATES OF AMERICA

Appellee

v.

CARLOS M. VILLALOBOS

Senior Chief Operations Specialist (E-8), U.S. Navy

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Captain Brian Lansing, JAGC, USN.

Convening Authority: Commander, Navy Region, Mid-Atlantic, 

Norfolk, VA.

Staff Judge Advocate’s Recommendation: Commander Irve C. 

Lemoyne, JAGC, USN.

For Appellant: Captain Daniel R. Douglass, USMC.

For Appellee: Major Kelli A. O’Neil, USMC; Captain Sean M. 

Monks, USMC.

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Decided 26 January 2018

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Before HUTCHISON, FULTON and SAYEGH, Appellate Military Judges

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This opinion does not serve as binding precedent, but may be cited 

as persuasive authority under NMCCA Rule of Practice and 

Procedure 18.2.

_________________________

PER CURIAM:

A military judge sitting as a general court-martial convicted the 

appellant, consistent with his pleas, of three specifications of violating a 

lawful general order prohibiting sexual harassment and four specifications of

assault consummated by a battery in violation of Articles 92 and 128, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 928. The 
United States v. Villalobos, No. 201700097

2

military judge sentenced the appellant to 36 months’ confinement, reduction 

to E-1, and a bad-conduct discharge. The convening authority (CA) approved 

the sentence as adjudged; however, pursuant to the pretrial agreement 

(PTA), he disapproved confinement in excess of 15 months, suspended 

adjudged and automatic reduction below the pay grade of E-4, deferred and 

then waived automatic forfeitures, and suspended the bad-conduct discharge.

The appellant assigns one error: that he received ineffective assistance of 

counsel when his civilian defense counsel (CDC) misstated the effect of 

Article 60, UCMJ, to the CA in a post-trial clemency letter. Specifically, the 

CDC incorrectly indicated that the CA did not have the authority to grant the 

appellant’s request to suspend all remaining confinement. Additionally, in a 

footnote, the appellant raises an alternate assignment of error that relies on 

United States v. Bannister, No. 201600056, 2016 CCA LEXIS 686, 

unpublished op. (N-M. Ct. Crim App. 30 Nov 2016), arguing the staff judge

advocate (SJA) committed error by not commenting on the legal deficiency in 

the CDC’s clemency letter. Finally, although the appellant did not raise it as 

an assignment of error, this court specified the issue of whether the CA had 

complied with the terms of the PTA requiring him to suspend the adjudged 

punitive discharge. After carefully considering the pleadings and the record 

of trial, we find no error materially prejudicial to the substantial rights of the 

appellant and affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ.

I. BACKGROUND

The appellant pleaded guilty to sexually harassing three junior female 

Sailors and assaulting two of them. The sexual harassment and assault of

one of the Sailors—Petty Officer KH—began prior to 24 June 2014.

The SJA’s recommendation (SJAR) to the CA incorrectly advised the CA, 

in relevant part, that Article 60, UCMJ, “[d]oes limit your authority to 

disapprove, commute, or suspend that part of the sentence which includes a 

punitive discharge or confinement for more than six months.”1 In his 

clemency submission, submitted via his CDC, the appellant requested

restoration to E-6 and suspension of all of his remaining confinement so that 

he could receive pay to support his family.2 The CDC’s cover letter forwarding 

the appellant’s clemency request revealed a misunderstanding of the 

amendments to Article 60, UCMJ. The CDC wrote, “[a]s I have explained to 

OS3 Villalobos, Article 60 has eliminated that clemency ability from your 

 

1 SJAR of 10 Feb 2017 at 3.

2 The appellant was beyond his end of active service date when he entered 

confinement. As a result, he was not entitled to pay or allowances pursuant to 

paragraph 010402, Volume 7A, DoD 7000.14-R, Financial Management Regulation.
United States v. Villalobos, No. 201700097

3

hands – obviously a provision of law I strenuously oppose[.]”

3 After receiving 

the CDC’s letter and the enclosed clemency request from the appellant, the 

SJA submitted an addendum to his original SJAR that advised the CA that 

“Article 60 of the Uniform Code of Military Justice does not limit your 

authority to grant the Defense Counsel’s requested clemency.”4 The SJA’s 

addendum did not comment on the CDC’s misstatement of law concerning 

Article 60, UCMJ. 

The CA did not approve any clemency when he acted on the appellant’s 

adjudged sentence. However, the CA indicated in his action that he “acted in 

accordance with the Pre-Trial Agreement” and that “[he] understand[s] that 

Article 60 of the Uniform Code of Military Justice does not limit [his]

authority to grant the Defense Counsel’s requested additional 

clemency . . . .”

5

II. DISCUSSION

A. Post-trial ineffective assistance of counsel 

The National Defense Authorization Act for Fiscal Year 2014 (FY14 

NDAA), Pub. L. No. 113-66, 127 Stat. 672 (2013), amended Article 60, UCMJ,

limiting the CA’s ability to reduce sentences in cases involving most offenses 

committed on or after 24 June 2014. But this reduction in a CA’s authority to 

grant post-trial clemency does not apply if at least one offense for which an 

accused is found guilty occurred before, or in a date-range that includes a 

date before, 24 June 2014.6 Because the appellant in this case was found

guilty of some offenses that occurred before 24 June 2014, the amendments to 

Article 60, UCMJ, did not affect the CA’s authority in this case to reduce the 

appellant’s sentence. 

The appellant argues that he received ineffective assistance of counsel 

when his CDC incorrectly conceded that the CA lacked authority to grant the 

appellant’s requested clemency.

“By virtue of Article 27, UCMJ, 10 U.S.C. § 827, as well as the Sixth 

Amendment of the Constitution, a military accused is guaranteed the 

effective assistance of counsel.” United States v. Scott, 24 M.J. 186, 187-88 

(C.M.A. 1987) (citations omitted). This guarantee includes the right to 

effective counsel during the post-trial process. United States v. Cornett, 47 

M.J. 128, 133 (C.A.A.F. 1997).

 

3 CDC ltr to the CA dtd 6 Mar 2017 at 2.

4 Final Addendum to SJAR dtd 16 Mar 2017 at 2.

5 General Court-Martial Order No. 13-17 dtd 16 Mar 2017 at 6.

6 80 Fed. Reg. 35810 (Jun. 22, 2015).
United States v. Villalobos, No. 201700097

4

We review claims of ineffective assistance of counsel de novo. United 

States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015). The appellant must clear a

high bar to prevail by showing: (1) that his counsel’s performance was 

deficient, and (2) that, but for his counsel’s deficient performance, there is a 

reasonable probability that the result of the proceeding would have been 

different. Id. (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).

In evaluating claims of post-trial ineffective assistance of counsel, we give the 

appellant the benefit of the doubt and find that “there is material prejudice to 

the substantial rights of an appellant if there is an error and the appellant 

‘makes some colorable showing of possible prejudice.’” United States v. 

Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998) (quoting United States v. 

Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997)).

In this case, we need not decide whether the CDC’s performance was 

deficient, because ‘“[i]f it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice . . . that course should be followed.”’

United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (quoting 

Strickland, 466 U.S. at 697) (alteration in original). Here, the appellant fails 

to make a “colorable showing of possible prejudice.” Wheelus, 49 M.J. at 289.

The CA clearly indicated in his action a correct understanding of the 

law—that he was free to exercise his full discretion to grant or deny the 

appellant’s clemency request. The CA chose to deny the appellant’s requested 

clemency. As a result, the appellant is unable to provide “an adequate 

description of what a properly advised convening authority might have done 

to structure an alternative form of clemency.” United States v. Capers, 62 

M.J. 268, 270 (C.A.A.F. 2005).

We have also considered the appellant’s alternative assignment of error 

and found it to be without merit. In Bannister, we set aside the CA’s action 

after the SJA failed to correct the detailed defense counsel’s affirmative 

misstatement of the CA’s clemency authority. Bannister, 2016 CCA LEXIS 

686, at *9. As a result, the CA was not properly advised of her authority to

act on the findings and sentence. Id. Unlike Bannister, the SJA here correctly 

advised the CA, in his SJAR addendum, regarding the CA’s authority under 

Article 60, UCMJ, and the CA’s action, as noted above, clearly reflects an 

accurate understanding of that authority. 

Based on the facts and pleadings in this case, we are firmly convinced the

CDC’s erroneous understanding of the law in the appellant’s clemency 

submission, did not prejudice the appellant.

B. CA’s action 

Although not raised by the appellant, we find that the CA’s action 

improperly attempted to “return [the appellant] to the pay grade of E-1,” 
United States v. Villalobos, No. 201700097

5

after suspending both the adjudged and automatic reduction below E-4 and 

noting that the suspended reductions “will be remitted without further 

action[.]”7 RULE FOR COURTS-MARTIAL (R.C.M.) 1108, MANUAL FOR COURTSMARTIAL, UNITED STATES (2016 ed.) states, “[r]emission cancels the 

unexecuted part of a sentence to which it applies.” Executing a cancelled part 

of a sentence is ultra vires and thus a nullity. See United States v. 

Tarniewicz, 70 M.J. 543, 544 (N-M. Ct. Crim. App. 2011) (holding that to the 

extent a CA’s action directed execution of a punitive discharge in violation of 

Article 71, UCMJ, it was ultra vires and thus a nullity).

The CA suspended the adjudged and automatic reduction below E-4 

pursuant to the PTA. Absent a vacation proceeding in accordance with 

R.C.M. 1109, the only action the CA could lawfully take was to allow the 

remission of the suspension of both the adjudged and automatic reduction 

below E-4 to occur at the conclusion of the period of suspension. “Rather than 

unnecessarily ordering a new CA’s action in this case, we take the existing 

CA’s action and disregard any portion that is not permitted by law.” United 

States v. Kruse, 75 M.J. 971, 975 (N-M. Ct. Crim. App. 2016).

Finally, with regard to whether the CA complied with the terms of the 

PTA requiring him to suspend the adjudged punitive discharge, upon review 

of the party’s briefs, we find the CA’s action does adequately reflect 

suspension of the adjudged punitive discharge, and thus, the appellant did 

receive the benefit he was entitled to under the PTA.

III. CONCLUSION

The findings and sentence as approved by the CA are affirmed. The 

supplemental court-martial order will reflect that the appellant’s suspended 

adjudged and automatic reduction below the paygrade of E-4, unless sooner 

vacated, will be remitted following the conclusion of the suspension period.

For the Court

R.H. TROIDL

Clerk of Court

 

7 General Court-Martial Order No. 13-17 at 4.